March 25, 2021 Articles

Summit Panel Recap: Practical Tips for Post-Pandemic Trials—Hybrid Jury Trials

While civil jury trials are likely to proceed primarily virtually in the imminent future due to public health concerns, it is anticipated that a hybrid jury trial model will take their place as 2021 proceeds.

By Benjamin Perkel

This piece was originally published in the January 2021 edition of the Civil Jury Project at NYU School of Law Newsletter.

Here we are over nine months into the COVID-19 pandemic, and as the calendar now turns to 2021, the outlook for civil jury trials still appears somewhat cloudy. On one hand, recent approvals of the Pfizer and Moderna vaccines are a significant step towards reopening America’s courthouses and represent a hopeful tool that should help us towards a “return to normal.” On the other hand, infection rates and fatality counts continue to accumulate at alarming levels across the nation. We also know that manufacturing, distributing, and administering vaccines are complicated and time-consuming challenges. These challenges remind us that uncertainty still abounds.

While civil jury trials are likely to proceed primarily virtually in the imminent future due to public health concerns, it is anticipated that a hybrid jury trial model will take their place as 2021 proceeds. Though timelines for implementation will likely differ amongst jurisdictions, now is the time to begin preparing for hybrid civil jury trials.

A hybrid civil jury trial model incorporates aspects of both in-person and virtual proceedings within the same trial. Early on during the pandemic, and largely out of necessity, courts successfully completed jury trials by blending in-person and digital modes of interaction. Following these experiences, many jurisdictions around the country began developing their plans for proceeding with civil jury trials based upon some form of a hybrid model – that is, until recent spikes in the spread of COVID-19 required a pivot in favor of virtual trials to ensure the safety of judges, attorneys, litigants, jurors, and court staff. However, this shift towards fully virtual civil jury trials appears to be temporary, and courts will likely resume plans for phasing in hybrid civil jury trials as soon as public health conditions permit.

Hybrid civil jury trials were a prominent topic discussed throughout November’s two-day Summit entitled “Covid, the Court, and the Future of the Jury Trial” which was hosted by the Online Courtroom Project and the National Institute for Trial Advocacy (and for which the Civil Jury Project was one of many co-sponsors). This piece reviews practical tips and lessons learned from members of Panel 1 and Panel 2 on the first day of the summit (November 13), comprised of judges, attorneys, and court administrators who have participated in various aspects of hybrid civil jury trials during the pandemic.

Panel 1: Practical Tips for In-Person Trials

Moderator:

Ken Broda-Bahm, PhD., Senior Litigation Consultant, Persuasion Strategies, Denver CO

Panel:

David Slayton, Administrative Director, Office of Court Administration, Austin, TX;
Hon. Kerry W. Meyer, Hennepin County District Court, MN;
Cory BulandSusman Godfrey, Gastonbury, CT.

Panel 2: Practical Tips for Hybrid and Online Trials

Moderator:

Hon. Mark A. Drummond (Ret.), Executive/Judicial Director-Civil Jury Project at NYU School of Law

Panel:
Hon. Matthew W. Williams, King County Superior Court, WA;
Hon. Jo-Lynne Q. Lee, Alameda County Superior Court, Department 18, San Francisco CA;
Coreen Wilson, Partner, Weick Wilson, PLLC., Seattle, WA;
Kenneth R. FriedmanPartner, Friedman | Rubin, Bremerton, WA.

What does a Hybrid Jury Trial Model look like?

NOTE – An additional, and valuable concept discussed was the flexibility to combine in-person and virtual formats during jury selection and the trial portion itself. For example, jurors may be given the option to participate in voir dire in-person at the courthouse or appear through a videoconferencing platform. Similarly, some witnesses might testify in the courtroom while others may be permitted to testify remotely. Flexibility will be the name of the game as civil jury trials begin to rev back up in 2021.

Jury Selection During the Pandemic

As judges, trial lawyers, and jury consultants know, the outcome of a trial can be significantly influenced by the jurors selected. Jury selection during the pandemic creates both new challenges and new opportunities. The following outline addresses solutions and relevant considerations to help you successfully address these new issues utilizing a hybrid jury trial model.

Issue: Balancing Public Health Considerations with Access to Justice

Solutions and Considerations Discussed:

  • In-Person jury selection

o   Whether a courthouse possesses the physical infrastructure to accommodate large enough jury pools while maintaining social distancing

o   Whether the prospective jurors who show up in-person will comprise a representative jury pool

  • Virtual jury selection

o   Public health concerns are eliminated by allowing prospective jurors to participate in jury selection from their homes

o   Whether a jury pool consisting only of people who possess the technological capabilities to participate in virtual jury selection will be representative of the venue

Issue: Whether the jury pool will be representative of the venue

Solutions and Considerations Discussed:

  • In-Person jury pools

o   Research was discussed which shows that certain segments of the population, particularly those most concerned about COVID-19, are less likely to appear for in-person jury selection.

  • Virtual jury pools

o   Concerns have been expressed that segments of the population possessing less technology and less technological capabilities may be excluded from virtual jury selection

o   However, observations from the field have noticed the opposite effect – an increase in representativeness of virtual jury pools

§  Texas has found that they have actually had more representative juries with virtual jury selection than with in-person jury selection, and particularly that participation has increased amongst communities that had been less likely to appear for in-person jury selection before the pandemic

§  The State of Washington has found that permitting jury pool members to participate remotely, in addition to offering an in-person option (when public health recommendations permit), has actually allowed more people to be able to participate in the jury pool

Issue: Seeing and hearing the jury pool during voir dire

Solutions and Considerations Discussed:

  • Interacting with In-Person jury pools

o   Alameda County, California courts have utilized a hybrid approach where jurors are in the assembly room while the judge and counsel participate in voir dire from the courtroom with each side communicating through large screens

o   Texas courts have provided jurors with clear face shields so that the judge and counsel can see their faces while responding to voir dire questions

  • Interacting with Virtual jury pools

o   You can only see what the camera is able to capture of each prospective juror, which means it is important to become comfortable with observing and processing nonverbal clues in a more compressed format where the focus on facial expressions becomes magnified

Issue: Managing the jury pool

Solutions and Considerations Discussed:

  • Managing In-Person jury pools

o   Pre-screening for hardships helps reduce how many people need to come to the courthouse for voir dire

o   Reconfiguring jury assembly rooms to accommodate social distancing for jurors when they fill out questionnaires and participate in voir dire

o   Limiting the number of jurors on each panel brought into the courtroom for voir dire at a time to accommodate for social distancing

NOTE – Managing in-person jury pools during the pandemic will likely require more up-front leg work for jury administrators than it did pre-pandemic

  • Managing Virtual jury pools

o   Pre-screening for hardships can help reduce the amount of people that need to join the court’s videoconferencing platform for virtual voir dire

o   Having jury pool members arrive at a virtual waiting room where they can fill out and submit their questionnaires online using a program like MS Forms

o   Limiting the number of jurors on each panel brought into the virtual courtroom at a time so each juror can be sufficiently observed by the judge and counsel during voir dire because the larger the jury panel, the smaller each person will appear on the judge’s and counsels’ screens

NOTE - Jury panel members can be easily brought in or out of a virtual courtroom as needed simply with the click of a button, which can be done by the judge or an assigned staff member

Issue: Handling sidebars

Solutions and Considerations Discussed:

  • Sidebars with In-Person jurors

o   It can be difficult for the judge, counsel, and jurors to hear each other when talking softly to maintain privacy while also trying to maintain social distancing

  • Sidebars with Virtual jurors

o   It is easy to move the other jury pool members to a separate breakout or waiting room while the judge and counsel have a sidebar conversation with a prospective juror

o   Alternatively, it is also easy to move the judge, counsel and prospective juror to a separate breakout room while leaving everyone else in the virtual courtroom

Issue: Determining the specific procedures and rules for jury selection in your trial

Solutions and Considerations Discussed:

  • In-Person jury selection

o   Rules and procedures need to be worked out and agreed upon well in advance of the trial date so courthouse staff, the judge, and counsel can properly prepare to execute jury selection

  • Virtual jury selection

o   Agreeing upon the rules and procedures well in advance of the trial date is important for virtual jury selection as well

o   Jurisdictions can also provide valuable assistance by adopting standardized rules and procedures governing remotely conducted voir dire

Topic: Benefits observed of virtual jury selection

Unique benefits of virtual jury selection discussed by panelists included:

  • Being able to have the jury pool fill out questionnaires and return them electronically in advance of the trial date, which provides attorneys and their jury consultants with valuable data that can be analyzed to formulate focused voir dire questions and hone voir dire strategy
  • Being able to see inside a prospective juror’s home can tell you a lot about them
  • Jury pool members were more comfortable participating from their homes and were more forthcoming and open in expressing their personal beliefs

Topic: Whether judges, attorneys and court administrators have a preference

When deciding whether jury selection should be conducted in-person or virtually for a trial that is proceeding based upon a hybrid model, panelists expressed the following about the virtues of virtual jury selection:

  • A court administrator expressed that the biggest issue with trials during the pandemic is picking the jury, and that once a jury is selected, court administration can make the rest of a trial work with all participants in the courtroom
  • Participants universally expressed that jury selection is the part of a trial attorneys seem most willing and eager to conduct virtually

Despite its imperfections, virtual jury selection offers some unique advantages to all stakeholders and seems to be a preferred format for selecting juries during the pandemic. It also seems to be the stage of trial most likely to not only remain after COVID-19 is in our rearview mirror, but also be expanded upon in the future. If there is one aspect of hybrid jury trials that judges and attorneys should focus on mastering, both for the present and the future, it would be virtual jury selection.

Conducting a Jury Trial During the Pandemic

In courts around country, judges and attorneys have had successful experiences conducting the trial phase with both in-person jurors and with virtual juries. However, courts have recognized that a “one size fits all” approach to civil jury trials will not work, and accordingly prefer the flexibility of a hybrid jury trial model. The following outline discusses the observations of judges, attorneys and court administrators who have experience with the trial phase of hybrid proceedings during the pandemic.

Issue: Balancing Public Health Considerations with Access to Justice

Solutions and Considerations Discussed:

  • In-Person

o   Whether the courtrooms in your jurisdiction are large enough to accommodate the judge, court staff, the attorneys, witnesses and all of the jurors for in-person trials while strictly adhering to public health guidelines about social distancing

§  For example, in Minnesota, courtrooms used for conducting in-person trials are a minimum of 1,900 sq. ft.

o   Reconfigured courtrooms must ensure that all jurors will be able to sufficiently see the evidence and hear the testimony from wherever they will be seated in the new courtroom setup

§  Ideas about how to accomplish this are provided in my discussion of this issue in a section entitled “Ensuring jurors can see evidence and hear testimony” below

  • Virtual

o   Conducting the trial portion virtually eliminates the public health concerns by allowing jurors to receive evidence and testimony remotely through an online videoconferencing platform from the safety of their own homes

o   When conducting the trial portion virtually, it is important that the courts, judges, and attorneys work together to help ensure remote jurors can sufficiently see and hear counsel’s presentations

§  Ideas about how to accomplish this are provided in my discussion of this issue in a section entitled “Ensuring jurors can see evidence and hear testimony” below

Issue: Ensuring jurors can see evidence and hear testimony

Solutions and Considerations Discussed:

  • Ensuring In-Person jurors can see evidence and hear testimony

o   Strategically placing video monitors around the courtroom can help ensure sufficient viewing from all angles

o   Providing each juror with their own personal viewing screen is another option

o   Utilizing clear face shields will help counsel and witnesses be able to hear each other better

  • Ensuring virtual jurors can see evidence and hear testimony

o   Providing appropriate technology to jurors who do not already have it so they can adequately see and hear the trial presentations

o   Focusing on designing demonstratives for viewing on the smaller types of screens that virtual jurors will likely be using (as opposed to the larger screens you would have in a courtroom)

Topic: Preparing to present your case

Solutions and Considerations Discussed:

  • Preparing to present to an In-Person jury

o   In general, preparing to present your case to an in-person jury should not be much different how you would normally prepare

o   However, be aware that you may need to do some additional preparation to get comfortable with things like new courtroom layouts and knowing current public health rules and procedures 

  • Preparing to present to a Virtual jury

o   Getting ready to present to a virtual jury requires you to utilize a very different kind of preparation process

§  More time should be spent honing virtual presentations to make them as clear and concise as possible to ensure you maintain a virtual jury’s attention

§  It is also important to spend extra time practicing how to present to the camera because that is a new skill that must be learned

o   As a general rule, attorneys should plan on devoting additional time and resources towards preparing to present your case to a virtual jury, particularly when you are starting out

§  For example, one attorney reported spending 5 hours to prepare for her closing argument and that she placed greater emphasis on having professionally designed demonstratives to present to a virtual jury

Issue: Presenting your case

Solutions and Considerations Discussed:

  • Presenting to an In-Person Jury

o   In general, presenting to an in-person jury during the pandemic will likely feel pretty “normal” once you get in the courtroom

o   However, presentation style may need to be adjusted to account for courtroom reconfigurations, such as the jurors being spread out around the room instead of sitting together in the jury box

  • Presenting to a Virtual Jury

o   Critical to keep presentations as concise as possible

§  Time limits are a good way to promote concise presentations

  • Judge imposed a time limit permitting each side 15 total hours to present their case to a virtual jury (an attorney involved in that case reported that each side only needed approximately 12.5 hours)
  • An attorney implemented a self-imposed time limit restricting her closing argument to no more than 45 minutes to ensure she did not lose her audience

o   Greater emphasis is placed on demonstratives by virtual jurors to help them understand virtual presentations

o   Presenting to a virtual jury requires a related, but different skillset than presenting to the jury in a courtroom

§  For example, an attorney learning to present to a virtual jury is like a stage actor learning to present to the camera for a TV show

Issue: Assessing witness credibility

Solutions and Considerations Discussed:

  • Assessing credibility of a witness testifying In-Person

o   Having witnesses wear clear face shields can help jurors assess credibility because they are able to see the witness’ face unobstructed by a mask

  • Assessing credibility of a witness testifying Virtually

o   Facial expressions and microexpressions are enhanced, while gestures become compressed and less distinct when viewed through a camera lens

Issue: Sharing exhibits with witnesses and jurors

Solutions and Considerations Discussed:

  • Sharing exhibits In-Person

o   Generally, the procedures will likely be similar to how this has traditionally been handled in-person

o   However, be aware that the sharing process may be somewhat modified pursuant to public health guidelines

  • Sharing exhibits Virtually

o   Can provide them electronically via email, sharing them in a secure folder through the cloud, or using a videoconferencing file sharing option

o   Hard copies can also be pre-transmitted to witnesses or jurors, but be sure to implement security measures such as placing them in a sealed envelope that must be opened on camera

Issue: Scheduling

Solutions and Considerations Discussed:

  • In-Person trial scheduling

o   Courts and judges indicated that they have generally kept the same type of full day schedule they normally utilized pre-pandemic

o   It should be noted that some minor scheduling modifications have been made, such as slightly longer breaks to ensure everyone can comply with public health guidelines

  • Virtual trial scheduling

o   Importance of shorter trial days

§  Alameda County, California has successfully utilized a modified half day schedule (8:30am to 1:30pm with two short breaks, Monday through Thursday) 

§  Shorter trial days also can make it easier for more jurors to participate, such as parents who need to find childcare

o   Importance of shorter presentation segments

o   Importance of more frequent breaks

Topic: An additional benefit of virtual trials

  • Being able to see jurors’ faces up close helps the judge and counsel identify when jurors are losing focus in virtual trials better than when in-person, which provides judges the opportunity to promptly take corrective action like suggesting a break

Regardless of whether you will be conducting the trial portion in-person or virtually, I recommend thinking about modifications for this stage by focusing on questions that begin with “How” (as opposed to questions beginning with “What”). That is, the objectives being pursued by judges and attorneys remain the same as they have always been, but circumstances related to the pandemic dictate that they be achieved through different means. The flexibility offered by a hybrid civil jury trial model provides judges and attorneys with opportunities to determine the most practical and effective means to help litigants pursue justice while ensuring the health and well-being of all participants.

Jury Deliberations During the Pandemic

Deliberations are the part of a trial that judges and attorneys have the least direct control over. When jurors deliberate together in-person, the court has some inherent measure of influence over the jury due to physical proximity. When providing virtual jurors with the opportunity to deliberate remotely, courts should try to replicate the sense of control traditionally felt when jurors are confined to a jury room inside the courthouse. Accordingly, the following outline focuses primarily on efforts to maintain the sanctity of jury deliberations conducted online.

Issue: Balancing Public Health Considerations with Access to Justice

Solutions and Considerations Discussed:

  • In-Person

o   Courts have been able to successfully conduct in-person jury deliberations during the pandemic by following sensible protocols like utilizing unused courtrooms for jurors to deliberate in so they could stay social distanced, as well as providing each juror with their own personal copies of exhibits so they did not need to share them

o   However, from an access to justice standpoint, public health guidelines and local public health ordinances may at times prevent jurisdictions from being able to conduct in-person jury deliberations, which is why the flexibility of the hybrid jury trial model is so helpful, and why the rest of this section focuses on virtual jury deliberations

  • Virtual

o   Conducting jury deliberations virtually eliminates public health concerns by allowing jurors to receive evidence and testimony remotely through an online videoconferencing platform from the safety of their own homes

o   However, there are numerous novel issues that all stakeholders should be aware of involving the logistics of conducting virtual deliberations and maintaining the integrity of online jury deliberations

Issue: Confidentiality, Secrecy, and Security of online deliberations

Solutions and Considerations Discussed:

  • Ensure that virtual jurors are deliberating in a secure breakout room

o   Provide clear instructions to reinforce the formalities of jury deliberations, particularly with regard to nobody else being permitted in the room during virtual deliberations and that jurors cannot talk about the case unless all members of the jury are present in the virtual deliberation room

  • However, there also needs to be some level of trust placed in virtual jurors to take their oaths seriously in the same way that in-person jurors are trusted not to violate their oaths when they go home, such as by conducting their own research or talking with family members or friends about the case

Issue: Communication between virtual jurors and the court

Solutions and Considerations Discussed:

  • Permitting the jury foreperson to deliberate from the courthouse seems to be the most definite way to ensure a direct line of communication
  • However, sufficient communication can also be achieved between the court and the jury by providing jurors with a variety of ways to contact the court remotely and clear instructions on how to do so

Issue: How a virtual jury will transmit an executed verdict form to the court

Solutions and Considerations Discussed:

  • A jury foreperson deliberating from the courthouse can provide the executed verdict sheet directly to the bailiff
  • Even if not deliberating from courthouse, a jury foreperson may also be able to physically drop off the verdict sheet at the courthouse in-person
  • If the jury foreperson is not able to provide the verdict sheet directly to the court in-person, it is crucial to ensure that they have the technological capabilities to submit an executed verdict sheet

o   Detailed instructions should be provided for how to transmit the verdict sheet electronically and technical support could be available should any issues arise

Issue: Providing copies of documents (i.e., admitted exhibits, jury instructions, verdict forms, etc.) to remote jurors for use during virtual deliberations

Solutions and Considerations Discussed:

  • Can provide documents to virtual jurors electronically via email or a shared cloud storage folder

o   If you transmit documents by email, send them separately to each juror so their personal email addresses are not accidentally shared amongst the group which could provide a means for jurors to impermissibly communicate outside of the formal deliberations

o   If you use a shared cloud storage folder to transmit exhibits, make sure the folder you share only includes admitted exhibits

  • Providing documents to remote jurors in hard copy form is also an option

o   Implement security measures like placing the documents in a sealed envelope that each juror cannot open until virtual deliberations begin

Issue: Monitoring virtual jury deliberations

Solution: Could have bailiff be present in the virtual deliberations room with their sound off

Issue: Remote juror bonding

Considerations Discussed:

  • When the trial phase is conducted virtually, there are concerns that jurors do not have the same opportunities to bond as they would if physically together in the courthouse during the trial

o   While judges have noticed that the lack of virtual juror bonding might be causing deliberations to take a little bit longer than they normally would, it is also encouraging to hear that they have not noticed an increase in mistrials

NOTE – Although there does not appear to be a clear answer about how to promote virtual juror bonding, it is an issue that all involved with the civil justice system should be aware of and something we should all be working together to solve.

Courts have had success adapting both in-person and virtual jury deliberations to overcome pandemic-related challenges. Acknowledging a general preference for in-person deliberations, it is important to recognize that there have been, and likely still will be, times when convening jurors to deliberate in-person is not a feasible option. Acknowledging there are still unresolved issues regarding online jury deliberations, such as how juror bonding can be replicated in a virtual format, it should be reassuring to know that panelists reported satisfaction with the sanctity and legitimacy of virtual deliberations, at least in their experiences. 

Conclusion

Ultimately, there are challenges to conducting every part of a civil jury trial regardless of whether it is conducted completely in-person, completely virtually, or utilizing a hybrid format. These challenges have become even more complex during the pandemic. A hybrid model offers courts important flexibility to strike an appropriate balance between public health and access to justice, and therefore is an effective tool for addressing the unique and evolving circumstances confronting civil jury trials. I hope you now have a better understanding of what is meant by the term “hybrid jury trial” and have gained some helpful suggestions for operating successfully within a hybrid civil jury trial model.

Finally, although this piece only covers two of the Summit’s eight panels, I learned much more than that from the experiences and insights shared by Summit participants. I strongly encourage viewing the Summit in its entirety if you have not already done so. A full recording can be accessed at this link: https://www.nita.org/summit-register.

Benjamin Perkel, J.D. is a Jury Consultant Advisor to the Civil Jury Project and can be reached at bperkel.jd@gmail.com. Ben applies his knowledge of psychology, social science research, and persuasive communication techniques to help lawyers prepare and present compelling arguments tailored to the various audiences they encounter during the litigation lifecycle.


Copyright © 2021, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).